Moran v. City of Yonkers , 282 A.D. 702 ( 1953 )

In an action to recover damages for personal injuries sustained by plaintiff by reason of a fall on an allegedly defective sidewalk, defendant appeals from a judgment in favor of plaintiff, rendered after trial. Judgment reversed on the law, with costs to abide the event, and new trial granted. The undisputed proof is that the accident occurred at a point on a sidewalk on Cowles Avenue, in the city of Yonkers, about 100 feet distant from the nearest side of premises known as 119 Cowles Avenue, on the same side of the street. Plaintiff’s notice of claim, given in pursuance of section 50-e of the General Municipal Law, stated that the accident happened on the sidewalk in front of said premises known as 119 Cowles Avenue. In view of the misstatement of the place where the accident was claimed to have taken place, the trial court erred in ruling that the notice of claim complied with the statute. Subdivision 6 of the cited section, which empowered the trial court to correct or disregard the mistake, if the mistake were “ made in good faith ”, and if the granting of such relief did not prejudice the defendant, was not invoked. In the interests of justice the case should be retried. Adel, Acting P. J., Wenzel, MaeCrate, Schmidt and Beldock, JJ., concur.